City of Portland v. O'Neill

• Decision Date: 19 October 1920
• Citation: 192 P. 909,98 Or. 162
• Parties: CITY OF PORTLAND, TO USE OF ELLIOTT CONTRACTING CO. v. O'NEILL ET AL. [a1]
• Court: Oregon Supreme Court

192 P. 909

98 Or. 162

CITY OF PORTLAND, TO USE OF ELLIOTT CONTRACTING CO. v. O'NEILL ET AL. ^[a1]

Supreme Court of Oregon

October 19, 1920

In Banc.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by the City of Portland, for the use and benefit of the Elliott Contracting Company, against J. P. O'Neill and the New Amsterdam Casualty Company. Judgment for plaintiff and last-named defendant appeals. Reversed and remanded.

This is an action based upon a contractor's bond furnished in pursuance of section 6266, L. O. L., as amended by General Laws of Oregon 1913, p. 59. The bond was signed by the defendant New Amsterdam Casualty Company as surety. The cause was tried by the court without the intervention of a jury. Findings of facts were made and a judgment rendered in favor of plaintiff. The New Amsterdam Casualty Company appeals.

The complaint, in addition to setting forth the corporate character of the city and the use plaintiff and the defendant surety company, shows in substance as follows: On the 8th day of November, 1915, the defendant O'Neill entered into a contract with the city of Portland for the construction of a sewer in Water street and Mill street of that city in accordance with the plans and specifications prepared therefor and the ordinances of the city. The contract provided that O'Neill should promptly make payment for all labor and materials used in the prosecution of the work. O'Neill as principal and the New Amsterdam Casualty Company as surety executed their penal bond in the sum of $14,596, conditioned that the contractor should pay all claims for labor, work, supplies, or provisions on account of all subcontractors, materialmen, laborers, and mechanics furnishing labor or material under the contract; a copy of the bond being attached to the complaint. O'Neill entered upon the work of constructing the sewer and completed the same, which was accepted by the city. It is then alleged as follows:

"Par VII. That during the progress of said work the said Elliott Contracting Company rented to said J. P. O'Neill for the prosecution of said work one pile driver at the agreed rental of $8 per day, and with the condition that said pile driver should be returned to them after the completion of said rental in as good condition as before said rental reasonable wear and tear thereof excepted.

"Par VIII. That said J. P. O'Neill retained said pile driver under said rental agreement in the said prosecution of said work for a period of 57 days; that during said time he damaged said pile driver in excess of reasonable wear and tear to the extent of $67.60.

"Par IX. That no part of said rental or said damage has been paid."

A second cause of action is set forth which is not involved upon this appeal.

A demurrer to the complaint was interposed and overruled. The casualty company answered, putting in issue the allegations of paragraphs VII, VIII, and IX of the complaint. Testimony was submitted, and the court found the facts the substance of which are stated above, finding in regard to the renting of the pile driver as follows:

"That during the progress of said work the said Elliott Contracting Company rented to said J. P. O'Neill for the prosecution of said work one pile driver at the agreed rental of $8 per day, and with the condition that said pile driver should be returned to them after the completion of said rental in as good condition as before said rental, reasonable wear and tear thereof excepted.

"That said J. P. O'Neill retained and used said pile driver under said rental agreement in the said prosecution of said work for a period of 57 days, ending February 8, 1916."

James L. Conley, of Portland, for appellant.

H. B. Nicholas, W. C. Nicholas, and R. W. Nicholas, all of Portland, for respondent.

BEAN, J. (after stating the facts as above).

The claim of appellant is: First, that the rental of equipment within the meaning of the statute, constitutes neither labor nor material and is therefore not within the bond; second, that if recovery can be had it must be limited to the time the equipment was actually used as distinguished from the time it was retained.

No bill of exceptions is contained in the record. Therefore the testimony is not before us. As submitted on behalf of plaintiff, the case comes to us upon the complaint and findings. Miller v. Head Camp, 45 Or. 192, 77 P. 83; Farrell v. Oregon Gold Co., 31 Or. 463, 49 P. 876. Defendant contends that the facts thus set out do not support the judgment. For the basis of the action we turn to the complaint. It will be observed that the pleading shows that the contractor rented the pile driver for the prosecution of the work at the agreed rental of $8 per day, and that he "retained" it for 57 days. There is no statement therein that the equipment was used in the construction or in any way for the prosecution of the work. In so far as that pleading discloses, a lease of the pile driver may have been executed and possession taken by the contractor and the apparatus never taken upon the works or used in any way in furtherance of the undertaking embraced in the contract and bond.

In following the federal cases pertaining to the expenses of machinery and means used by such a contractor who has furnished a bond provided for by the statute, where the energy procured has entered into the prosecution of the work we have adopted a liberal rule in the construction of the statute. See Multnomah County v. U.S....